e named plaintiffs to appeal the district court’s class certification order.Relying on the U.S. Supreme Court’s 2021 decision in TransUnion LLC v. Ramirez, the Eleventh Circuit first found that the named plaintiffs had Article III standing to bring the action. Specifically, the Eleventh Circuit referenced the Supreme Court’s acknowledgment in Ramirez that intangible harms can be concrete if they bear “a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” According to the Eleventh Circuit, because violations of the FCRA “have a close relationship to the harm caused by the publication of defamatory information,” a consumer does not have to prove that the false reporting caused an injury because the false reporting itself is the injury. The Eleventh Circuit found that the named plaintiffs had standing because the record contained evidence that the status dates reported by Experian on their credit reports were inaccurate.The FCRA, in 15 U.S.C. Sec. 1681n(a)(1)(A), allows a consumer to recover “[1] any actual damages sustained by the consumer as a result of the [violation] or [2] damages of not less than $100 and not more than $1,000.” (emphasis added). Experian argued that Congress made recovery under both options contingent on a showing actual damages, and that “damages” under the second option are reserved for consumers who incur actual damages but either cannot prove the precise amount of damages or suffered less than $100 in actual damages. In rejecting Experian’s argument, one of the key rationales offered by the Eleventh Circuit was the plain language of Section 1681n(a)(1)(A) with regard to the first option, which states that actual damages must be sustained by the consumer as a result of the violation before the consumer can recover. In contrast, the second option contains none of these requirements. In addition, emphasizing that the two options in Section 1681n(a)(1)(A) are separated by “or,” the Eleventh Circuit observed that Congres

Plaintiff alleges that Defendants continued to report the information despite receiving notice of Plaintiff’s dispute, failed to conduct a reasonable investigation pursuant to the FCRA, failed to review all relevant information provided by Plaintiff pursuant to the FCRA, failed to correct and update Plaintiff’s credit report, and failed to take appropriate measures upon notice of the disputed debt as outlined in the FCRA. The Complaint asserts a single cause of action alleging “numerous and multiple willful, reckless or negligent violations of the FCRA,” and seeks actual and statutory damages pursuant to 15 U.S.C. § 1681n(a)(1), punitive damages pursuant to 15 U.S.C. § 1681n(a)(2), and reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1681n(a)(3). We continue to see an uptick in actions brought for violations of the FCRA, and nuances in the law continue to trouble lenders.

On August 15, the USDA filed a brief urging the U.S. Supreme Court to overturn a U.S. Court of Appeals for the Third Circuit decision to reverse its FCRA lawsuit brought by a plaintiff who alleged that the consumer credit reporting agency reported two loans as past due even though he claimed both were closed with a $0 balance. In August 2022, the 3rd Circuit reversed a district court’s decision to grant a student loan servicer, consumer credit reporting agency, and the USDA’s (defendants) motion to dismiss a case finding that Congress unambiguously waived the government’s sovereign immunity in enacting FCRA (covered by InfoBytes here). The USDA argues that the district court was wrong in its decision, and that the FCRA does not waive the U.S.’s sovereign immunity for claims under 15 U.S.C. 1681n and 1681o because, among other things, (i) a waiver of sovereign immunity requires “unmistakably clear” statutory language; (ii) the FCRA does not create a cause of action that “‘expressly authorizes suits against sovereigns,’ and ‘recognizing immunity’ would ‘negate[]’ that express authorization”; (iii) the FCRA uses “persons” in a way that does not distinguish between sovereign and non-sovereign senses; (iv) “inexplicable incongruencies” with the term “person” within the context of §§ 1681n and 1681o includes a sovereign entity, which would not only expose the federal government but also individual states to potential lawsuits seeking monetary damages; and (v) interpreting the FCRA to permit lawsuits against the U.S. would significantly broaden the scope of liability for federal agencies, creating “overlap” already provided by the Privacy Act.

Plaintiffs claimed that because of these reporting mistakes, they paid higher interest on loans to purchase used cars and suffered emotional distress. The district court granted Plaintiffs summary judgment on this FCRA claim, finding the Defendant’s conduct was willful under 15 U.S.C. § 1681n(a), given all the litigation regarding whether Plaintiffs owed anything more on the second loan. However, the court denied Plaintiffs’ request for emotional distress and punitive damages.

This lawsuit “caught Defendant’s attention” and immediately prompted it to update its database, correct its previous errors and accurately report the status of Plaintiffs’ second loan, finally.Plaintiffs claimed that because of these reporting mistakes, they paid higher interest on loans to purchase used cars and suffered emotional distress. The district court granted Plaintiffs summary judgment on this FCRA claim, finding the Defendant’s conduct was willful under 15 U.S.C. § 1681n(a), given all the litigation regarding whether Plaintiffs owed anything more on the second loan. However, the court denied Plaintiffs’ request for emotional distress and punitive damages.

introduced H.R. 2359, the FCRA Liability Harmonization Act, which would cap class action damages in Fair Credit Reporting Act claims at $500,000 or one percent of the defendant’s net worth, whichever is less, and eliminate punitive damages. Such changes would align the Fair Credit Reporting Act with numerous other consumer protection laws already in place, such as the Truth in Lending Act, the Fair Debt Collection Practices Act, the Equal Credit Opportunity Act, and the Electronic Funds Transfer Act.Specifically, the bill amends Section 616 of the FCRA (15 U.S.C. §1681n) and Section 617 of the FCRA (15 U.S.C. §1681o7):Willful Noncompliance.—Section 616 of the Fair Credit Reporting Act (15 U.S.C. 1681n) is amended—(1) in subsection (a)—(A) by striking paragraph (2); (B) by redesignating paragraph (3) as paragraph (2); and (C) in paragraph (1)(B), by inserting “and” after the semicolon; (2) by redesignating subsection (d) as subsection (e); and (3) by inserting after subsection (c) the following new subsection: “(d) Class Action Lawsuits.—With respect to a class action (as such term is defined in section 1711 of title 28, United States Code), or series of class actions arising out of the same failure to comply of a person, brought by consumers against a person who willfully fails to comply with any requirement imposed under this title, such person is liable to such consumers in such an amount as a court may determine, except that—“(1) the court may not apply a minimum amount of damages for each member of the class; and “(2) the total recovery (excludin

The FCRA also provides a private right of action against users of consumer reports, including potential employers, for any willful or negligent failures to comply with its requirements. See 15 U.S.C. § 1681n(a) & 1681o(a). For willful violations, plaintiffs may recover statutory damages, punitive damages and attorneys’ fees and costs.

Like the FDCPA and FCCPA, the FCRA permits a successful plaintiff to recover statutory damages of up to $1,000. See 15 U.S.C. § 1681n(a)(1)(A). The FCRA may sound familiar because it was the center of the recent Supreme Court case, Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016).

FACTA creates a private cause of action for “any actual damages . . . or damages of not less than $100 and not more than $1,000.” 15 U.S.C. § 1681n(a).Defendants are a conglomerate of several hundred clothing stores and manufacturers known as J. Crew, along with parent company Chino’s Holdings, Inc.Plaintiff Ahmed Kamal brings this action “on behalf of all persons or entities to whom Defendants provided an electronically printed receipt at the point of sale or transaction . . . which receipt displayed more than the last five digits of the customer’s credit card number.” Pl. Am. Compl., ¶ 13.

Notably, the FCRA provides for statutory damages of up to $1,000 and punitive damages for willful noncompliance with the Act. 15 U.S.C. § 1681n(b). Attorney’s fees may also be collected under the Act.